Posts tagged "Gallagher"

Gallagher v. Cerebral Palsy of Massachusetts, Inc., et al. (Lawyers Weekly No. 11-117-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1152                                       Appeals Court   SUSAN GALLAGHER  vs.  CEREBRAL PALSY OF MASSACHUSETTS, INC., & others.[1]     No. 16-P-1152.   Norfolk.     April 6, 2017. – September 13, 2017.   Present:  Green, Blake, & Lemire, JJ.     MassHealth.  Massachusetts Wage Act.  Labor, Overtime compensation, Failure to pay wages.  Independent Contractor Act.  Regulation.  Practice, Civil, Motion to dismiss, Summary judgment.       Civil action commenced in the Superior Court Department on December 10, 2015.   A motion to dismiss was heard by Rosalind Henson Miller, J.     Paul L. Nevins for the plaintiff. Jeffrey S. Beeler for the defendants.     LEMIRE, J.  Susan Gallagher, a personal care attendant (PCA) who provided in-home services for an elderly man (consumer[2]), brought an action in Superior Court against Cerebral Palsy of Massachusetts, Inc.; its president, Donald Uvanitte; and its treasurer, David Sprague (collectively, CPM), alleging that CPM was her employer and that it failed to pay her for her overtime hours, including failing to do so at an overtime rate.  A judge granted CPM’s motion to dismiss on the ground that, pursuant to the MassHealth regulations (regulations) governing Gallagher’s work arrangement, she was employed by the consumer, not CPM.  Gallagher appeals from the judgment, and we affirm. Standard of review.  Although there were exhibits attached to both CPM’s motion to dismiss and Gallagher’s opposition, the judge ostensibly declined to treat the motion as one for summary judgment, and she excluded the additional material from consideration.  See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974).  But in a footnote explicitly listing the excluded exhibits, the judge did not identify as having been excluded one of CPM’s submissions:  excerpts from a contract it executed with the Executive Office of Health and Human Services.  That document establishes the applicability of certain of the regulations, including CPM’s role within that regulatory framework as a “fiscal intermediary,” i.e., an entity that serves in a facilitative role with regard to payroll and related matters.  130 Code Mass. Regs. § 422.402 (2006).  These facts were not reflected in the complaint, but the judge cited them as dispositive.  By relying on facts outside of the complaint, the judge essentially rendered a decision in the nature of summary judgment.  Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 533-534 (2014). We will review the decision as such, including taking into consideration the other excluded […]

Read more...

Posted by Massachusetts Legal Resources - September 13, 2017 at 6:36 pm

Categories: News   Tags: , , , , , , ,

Commonwealth v. Gallagher (Lawyers Weekly No. 11-046-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-192                                        Appeals Court   COMMONWEALTH  vs.  JUDITH A. GALLAGHER.     No. 16-P-192.   Hampden.     February 7, 2017. – April 21, 2017.   Present:  Green, Meade, & Agnes, JJ.     Motor Vehicle, Operating under the influence.  Intoxication. Evidence, Intoxication, Opinion.  Practice, Criminal, Witness.  Witness, Police officer.     Complaint received and sworn to in the Chicopee Division of the District Court Department on June 30, 2014.   The case was tried before Bethzaida Sanabria-Vega, J.     Colin Caffrey for the defendant. Kelsey A. Baran, Assistant District Attorney, for the Commonwealth.     MEADE, J.  After a jury trial, the defendant was convicted of operating while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24(1)(a)(1).  On appeal, she claims that the judge improperly admitted a State trooper’s testimony concerning her impairment to operate a motor vehicle, and that the evidence was insufficient to support her conviction.  We affirm. Background.  a.  The incident.  In the early morning hours of June 29, 2014, the Massachusetts State police were conducting an OUI checkpoint on Route 33 in Chicopee.[1]  State Trooper John Haidousis, who had ten years of experience working in law enforcement,[2] was assigned to work the secondary location, i.e., the parking lot of Monroe Muffler, a business located directly off of Route 33.[3]  The business parking lot was brightly lit, the ground was flat and paved, and individual parking spots were marked visibly by painted lines on the pavement. At about 12:15 A.M., the defendant, as directed by another trooper, drove her vehicle into the secondary location parking lot without incident.  Trooper Haidousis directed her to park in one of the marked parking spots.  The defendant failed to do as instructed, instead parking her vehicle “crooked[ly]” or “diagonally across two parking spots.”  Upon request, the defendant produced a driver’s license and perhaps a registration; Trooper Haidousis determined that she was seventy-one years old. As Trooper Haidousis spoke to the defendant he detected an odor of alcoholic beverage coming from her mouth, and observed her eyes to be “bloodshot and glassy.”  Trooper Haidousis asked the defendant whether she had consumed any alcohol, to which she replied that she had consumed three beers, and had started drinking around midnight.  Her speech was “a bit slurred.”  Based on these observations, Trooper Haidousis asked the defendant to perform field sobriety tests, to […]

Read more...

Posted by Massachusetts Legal Resources - April 21, 2017 at 9:00 pm

Categories: News   Tags: , , , ,

Partanen v. Gallagher (Lawyers Weekly No. 10-157-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12018   KAREN PARTANEN  vs.  JULIE GALLAGHER.       Middlesex.     April 5, 2016. – October 4, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]     Parentage.  Statute, Construction.       Complaint in equity filed in the Middlesex Division of the Probate and Family Court Department on October 17, 2014.   A motion to dismiss was heard by Jeffrey A. Abber, J.   The Supreme Judicial Court granted an application for direct appellate review.     Mary Lisa Bonauto (Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier, & Joyce Kauffman with her) for the plaintiff. Jennifer M. Lamanna for the defendant. The following submitted briefs for amicus curiae: Thomas Brown for Greater Boston Legal Services & others. Emily R. Shulman, Brook Hopkins, & Adam M Cambier for American Academy of Assisted Reproductive Technology Attorneys & others. Abigail Taylor, Gail Garinger, Brittany Williams, & Andrea C. Kramer, Assistant Attorneys General, for the Attorney General. Shannon Minter, of California, Marco J. Quina, & Emma S. Winer for forty-two law professors & another.     LENK, J.  In 2014, the plaintiff, Karen Partanen, filed a complaint in the Probate and Family Court seeking to establish legal parentage of two young children.  The complaint alleged that she and the defendant, Julie Gallagher, had been in a committed, nonmarital relationship between 2001 and 2013.  Using in vitro fertilization, and with Partanen’s “full acknowledgment, participation, and consent,” Gallagher gave birth to the two children.  Thereafter, Partanen and Gallagher represented themselves publicly as the children’s parents, and jointly raised the children until their 2013 separation.  On the basis of these allegations, Partanen’s complaint sought a declaration of parentage pursuant to, among other things, G. L. c. 209C, § 6 (a) (4).  That statute provides that “a man is presumed to be the father of a child” born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”  Concluding that Partanen could not be deemed a presumed parent under G. L. c. 209C, § 6 (a) (4), because it was undisputed that she was not the children’s biological parent, a judge of the Probate and Family Court dismissed the complaint for failure to state a claim upon which relief can be granted.  See Mass. R. Dom. Rel. P. 12(b)(6). In addressing Partanen’s claims on direct appellate review, we […]

Read more...

Posted by Massachusetts Legal Resources - October 4, 2016 at 5:06 pm

Categories: News   Tags: , , , ,

Gallagher v. First Assistant Clerk-Magistrate of the Newburyport District Court, et al. (Lawyers Weekly No. 10-190-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11592   ROBERT GALLAGHER  vs.  FIRST ASSISTANT CLERK-MAGISTRATE OF THE NEWBURYPORT DISTRICT COURT & others.[1]     November 28, 2014     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Attorney’s fees, Small claims procedure.  District Court, Small claims procedure.     Robert Gallagher appeals from a judgment of a single justice of this court dismissing his petition for relief under G. L. c. 211, § 3.  In his petition, he sought relief from final judgments entered in two cases in the District Court Department.  In one of the cases, after Gallagher prevailed on a complaint brought against him under the harassment prevention statute, G. L. c. 258E, the judge failed to act on his request for attorney’s fees.  In the other case, judgment was entered against him on a G. L. c. 93A claim that he brought in the small claims session.   As to the former case, Gallagher had, but did not pursue, adequate alternative remedies, both in the trial court and through the ordinary appellate process.[2]  “Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.”  Votta v. Police Dep’t of Billerica, 444 Mass. 1001, 1001 (2005).  See Foley v. Lowell Div. of the Dist. Ct. Dep’t, 398 Mass. 800, 802 (1986), and cases cited (“Where a petitioner can raise his claim in the normal course of trial and appeal, relief will be denied”).   As to the latter case, it is well established that “a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court’s extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment.”  Zullo v. Culik Law P.C., 467 Mass. 1009, 1009 (2014), and cases cited.  The single justice properly declined to grant extraordinary relief.[3]   Judgment affirmed.   The case was submitted on briefs. Robert J. Gallagher, pro se. Bryan F. Bertram, Assistant Attorney General, for the Commonwealth.      [1] A Justice of the Lawrence District Court, the clerk-magistrate of the Lawrence District Court, Stephen D’Angelo, Mary McCauley-Manzi, and Catherine W. Wnek.        [2] For example, Gallagher could have moved […]

Read more...

Posted by Massachusetts Legal Resources - December 1, 2014 at 3:26 pm

Categories: News   Tags: , , , , , , , , ,